The plaintiff produced evidence tending to prove the contract which he alleged. The defendant introduced evidence to the contrary, but there was sufficient evidence to warrant the submission of the question to the jury.
The only remaining question is whether the evidence showed a conviction of Phillips. The defendant contends that, because judgment was arrested upon the verdict, the verdict was thereby set aside, and that, in legal contemplation, there was no conviction. This exact question was decided in State v. Parish, 43 Wis. 395. It was there held that an order arresting judgment does not set aside the verdict in a criminal case. The verdict remains, and is available to the accused in a second prosecution for the same offense, under the,plea of autrefois convict. The question is not an open one in this court.
There are no other questions presented which require discussion. The order granting a new trial was not made under the discretionary power of the court, but for the single reason that the court should have directed a verdict for the defendant under the law of the case. In this the circuit judge was mistaken. The law did not so require.
By the Court.— The order of the circuit court is reversed, and the action remanded for further proceedings according to law.